JUDGMENT

1. The appellant/complainant is challenging the judgment of acquittal passed by II Additional Civil Judge & JMFC-II, Vijayapura in C.C.No.1527/2012, dated 06.07.2020 for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act').

2. The parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

3. The factual matrix leading to the case of complainant can be stated in nutshell to the effect that on 07.02.2010 accused has approached the complainant and requested to give hand loan of Rs.2,00,000/-, which was required for his contract work. The complainant has gave Rs.2,00,000/- on assurance of accused that he will return the same within 9 months. The accused in order to discharge the said debt has issued Cheque bearing No.130702 dated 07.12.2010 drawn on Alahabad Bank, Vijayapura. The complainant presented the said Cheque for collection on 27.01.2011 and the same was dishonoured for want of sufficient funds vide bank endorsement dated 28.01.2011. On intimating the said fact to the accused, the accused has requested to represent the Cheque after 20 days. The complainant has represented the Cheque on 28.02.2011 through his Banker State Bank of India, Treasury Bank, Vijayapura. The same was again dishonoured with endorsement of insufficient funds vide memo of Bank dated 01.03.2011. The complainant has issued Demand Notice on 14.03.2011. The wife of accused has received the notice on 16.03.2011. However, the accused has neither replied to the notice nor paid the money covered under the Cheque. The complaint is filed on 29.04.2011.

4. In response to the summons, the accused has appeared through counsel and contested the case. The complainant in order to prove his case relied on the oral evidence of PW1 and the documents as per Exs.P1 to Ex.P6. The accused has examined himself as DW1 and relied on the document as per Ex.D1. The Trial Court after having heard the arguments of both sides has acquitted the accused from the charge leveled against him for the offence under Section 138 of N.I. Act.

5. The appellant/complainant has challenged the correctness and legality of the said judgment of acquittal contending that non-mentioning of date as to when money was given cannot be fatal to the case of complainant. The Trial Court was not justified in doubting the loan transaction by invoking Section 269-SS of Income Tax Act and committed serious error in recording the finding that it is not legally enforceable debt. The accused has never questioned financial capacity of complainant in lending the money. The claim of accused that Cheque as per Ex.P1 was given as security and there was no cause of action brought on record during the course of cross- examination of PW1 is not supported by any evidence on record. The approach and appreciation of oral and documentary evidence by the Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to convict the accused for the charge leveled against him.

6. In response to the notice of appeal, respondent has appeared through his counsel.

7. The trial Court records have been secured.

8. Heard the arguments of both sides.

9. The appellant/complainant in support of his oral evidence about issuance of Cheque by accused for legally enforceable debt, has relied on the Cheque as per Ex.P1 dated 07.12.2010. The complainant has presented the said Cheque on 27.01.2011 and the same was dishonoured with

an endorsement as 'insufficient funds' vide Bank intimation dated 28.01.2011. On intimation of the said fact, on request of accused, complainant has represented the Cheque after 20 days on 28.02.2011. The same was again dishonoured as 'insufficient funds' vide Bank intimation dated 01.03.2011 at Ex.P3. The complainant has issued Demand Notice dated 14.03.2011 at Ex.P5. The same is served to the wife of accused on 16.03.2011 at Ex.P6. The accused has neither replied to the notice nor pa